Professional malpractice

Don Jacobs

Contributor

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Lawyers, like doctors, architects, accountants or any other professional, are responsible for the damage created when they make an error. Often referred to as professional malpractice, these errors may give anyone harmed by the malpractice certain rights of recovery. In order to prove malpractice occurred, a consumer of professional services must be able to show that the professional services they received fell below a certain minimum standard of care. The law creates a standard of care for all of us in many activities of daily life. The standard for all of us is often referred to as the standard set by the ordinary reasonable person. What would the ordinary reasonable person do in any given situation? If we take some action that this fictitious person probably wouldn’t have taken, we may become responsible if someone is harmed as a result. As an example, we each drive upon the highway. When we do so, we have to adhere to a certain standard of care set by the ordinary careful motorist. If we take an action behind the wheel that no ordinary careful motorist would take, we become responsible for any damage created. The same rule applies to professionals. It’s just that their standard of care is higher as they are no longer ordinary persons. They hold themselves out to the public as having special expertise the ordinary human does not possess. As a result, they have to adhere to a higher standard of care. Their standard is one set by the ordinary careful professional in a given situation. If the ordinary careful professional would not have acted the way they did under a certain set of facts, they are said to have violated the standard of care. Not all violations of the standard of care are compensable. The violation must be the cause of some damage to the client or patient. Bad outcomes alone are not considered compensable malpractice. On many occasions, a doctor or lawyer can perform admirably, but end up with a bad outcome. The bad outcome that occurred may have been a known and accepted risk inherent in the services provided. As an example of professional malpractice, a lawyer may neglect to adequately work up a case for trial or may fail to hire the proper experts or line up the appropriate witnesses. If the case is lost, or if the client is forced into a small settlement as a result, they may be entitled to damages.